Toll concessionaire Metramac Corporation Sdn Bhd's complaint of bias following Court of Appeal Judge Gopal Sri Ram's remarks against former finance minister Daim Zainuddin and businessman Halim Saad was "not genuine, far-fetched and too fanciful", heard the Federal Court today.

Senior lawyer Cyrus V Das said this when arguing that the bias claim held no merit for the court to grant leave to Metramac - which was ordered to pay his client Fawziah Holdings RM65 million for loss of advertising rights - to take the matter to the apex court.

Terming it as a sweeping statement, he said there were no suggestions of any possibility of bias from Metramac throughout the proceedings at the court of appeal and that the complaint only arose after it lost the case.

He also urged the judges not to allow the complaints to sway them from the real issues of the case which basically revolves around a breach of contract and questions of liability and quantum.

Non-parties

"The complaints are really over comments made about certain non-parties (Daim and Halim) in one of the written judgments of the court of appeal. The third parties concerned have themselves taken legal steps now to address this complaint."

He said the court should not be concerned of the issue which will be heard independently even if leave is refused in this case.

"We submit that the remarks and the application by the third parties (to expunge the remarks from the judgment) has to be decided on its own merits. It is not tagged on to the present case," he argued.

He was responding to the arguments made by Metramac's lawyer Muhammad Shafee Abdullah who claimed that Gopal's remarks against Daim, Halim and his ex-partner Anuar Othman showed a "real danger of bias" against his client.

Metramac- the concessionaire of the East-West Link Expressway and the Sungai Besi Expressway - is seeking leave to appeal against the appellate court's Jan 12 decision where the company was ordered to pay Fawziah Holdings for the breach of contract on advertising rights.

The case attracted public attention when Gopal in his judgment had, among others, accused Halim and Anuar of siphoning RM32.5 million from Metramac while under the patronage of Daim, then finance minister.

Daim and Halim have since obtained leave to act as interveners in the appeal to expunge Gopal's remarks.

The case was heard before a five-member panel of judges consisting of Chief Justice Ahmad Fairuz Sheikh Ab Halim and Federal Court judges Pajan Singh Gill, Allaudin Mohd Sherif, Richard Malanjum and Nik Hashim Nik Ab Rahman

General statement

Cyrus also argued that it is insufficient for Metramac to make a general statement of bias against the entire court of appeal - which comprised a panel of three judges - based on Gopal's remarks alone.

"In that respect, it is far fetched and fanciful to say that all three judge are presumed to be biassed against a party because of the adverse remarks about a non-party found in one of the written judgments.

"It is submitted that the question of bias is speculative and is in nature of an attempt to invalidate the judgment," he added.

He said while it can be argued that a single judge may reflect prejudice it would be odd to say that all three judges were likewise prejudiced by some remarks made against non-parties.

"We must be careful against a trend emerging where an appeal court's judgment is sought to be set aside because of an adverse comment in the judgment of parties or witnesses let alone of non-parties," he added.

The issue also raised no novel points of law and that it would be "too far fetched" to suggest that adverse remarks about non-parties can invalidate the judgement, he added.

He also argued that although the court may not approve the remarks, it should not invalidate the judgment even if it was to delete or expunge the remarks.

Unfair picture

Cyrus also argued that Muhammad Shafee had not given the full picture behind the restructured sales agreement when he described the buying over of Syarikat Teratai KG Sdn Bhd or STKG (as Metramac was formerly known) by Halim through Metro Juara.

"An unfair picture was portrayed by the applicant that the respondent (Fawziah Holdings) had taken away the non-concession business (including the advertising rights) of the company and in the end, the applicant gained nothing."

He explained that when Metro Juara took over STKG it was a one-project company after all non-concession business - including that of the advertising and sinage agreement - was assigned to Fawziah Holdings.

This was after new investors - including Tabung Haji, American International Assurance and Bank Pembangunan - strictly demanded that the company only to invest in the toll business and nothing else.

"For the applicant to say that the buying over of STKG by Metro Juara was the biggest con-job because Metro Juara got nothing in the end is furthest from the truth. That statement also shows refusal to understand the scheme of restructuring to carry out the concession project," said Cyrus.

He argued that none of the points raised by Metramac has met the stringent test laid down in section 96(a) of the Court of Judicature Act which states that the court may only grant leave when issues raised are novel and of public interest.

The court will hear final arguments from Shafee on Thursday.